77/6' Court of Equity. many of these, and they were strictly ob served; and several of them, it is believed, were capable of execution without the inter vention of the ordinary tribunals, as various Jewish laws.1 The same simplicity is observable among the early European nations. The fewness of general laws and the adherence to foundational principles of justice and morality; even down to Saxon times,2 these precepts were observed as foundational. So also among the Germanic tribes,3 and among- the early inhabitants of England,* the king or chief was the judge in controversies between his subjects. In this task he had assistants among the Germans,6 and at the time of Bracton in England6 the king might —and did—have assistants. In Britain the king was conceded to the fountain of justice and honor.7 From these delegations of authority in England, and from the king's custom of call ing councillors to his assistance in judicial matters, arose the system of courts which is in the main followed to-day among English speaking peoples. The history of the com mon law courts, so called, it is not our pur pose, nor is it essential, to enter. The king still retained a measure of judi cial power even after the portion had been delegated to the common law courts, and he still exercised jurisdiction in special cases, either to temper the rigor of the law or to extend it in order that complete justice might be done. The monarchical authority to dispense with the law, to pardon, and to compel the doing of justice and right in particular cases, 1 Bible, Leviticus xx, xxiv, 17; II Samuel xiv, 4-17; John viii, 3-11.
- Campbell's Lives of the Chancellors, vol. I, p. 32
(Note); Sullivan's Lectures, I. 3 Tacitus, De Mor Ger., ch. 7, 12, 14. ' History of Institutions, Maine, p. 35. 5 Sullivan's Lectures, IV. 6 Bracton, De Legibus, etc., II, ch. 9, 107 b; ch. 10, fol. 108, V; ch. 15, fol. 412, i, 2, 3. 7 Id.
109
is a prerogative of very ancient origin. It does not need the citation of historical facts to show its existence among the Western Asiatic absolute monarchies, and in the code of Edgar (959-975) there was a provision that the mitigation of the law, if too heavy, might be sought from the king. Still more exten sively was this prerogative recognized by the Burgundians with whom the king had au thority to solve ambiguities in the law and to interfere when a case arose requiring a rem edy, but as to which the written law was silent. His duty was to apply equitable rules in the decision of such cases. Mr. Spence observes, after reciting th'is paragraph, that the prerogative in each nation is of imperial origin. This is undoubtedly the secondary source, but the ultimate fact is, that this prerogative has been exercised by kings in all ages and is associated with sovereignty itself.8 In England the Select Council, originally of small consequence among the Saxons, was continued by the Normans as a court of jus tice. Its chief business officer was the chan cellor, who kept its records and issued its writs. Causes both of a civil and a criminal nature were heard by it, and if there appeared to be adequate relief in the ordinary tribu nals, the cause was sent to the one of these in which it appropriately belonged, but if the re sources of these were inadequate to the situa tion the answer was, the king will consider, or, a remedy will be provided.8 The deci sions of the council, like those of the subse quent court of chancery, were based upon principles of equity and general law, or were per aequo et bono.10 The office of chancellor is one of high antiquity. In early Roman imperial history •he kept the latticed doors or cancelli lead ing to the imperial presence chamber. The ' Spence, Eq. Jur. I, * 77. ' Spence, Eq. Jur. I, • 328-330; Reeves' Hist. Kng. Law (Finlason), III, 155, 156. 10 Reeves' Hist. Eng. Law (Finlason), I, 283.
